‘Towards a Global Pact for the Environment’: International environmental law's factual, technical and (unmentionable) normative gaps

• Author: Duncan French,Louis J. Kotzé
• Published date: 01 April 2019
• Date: 01 April 2019
• DOI: http://doi.org/10.1111/reel.12278

SPECIAL ISSUE ARTICLE

‘Towards a Global Pact for the Environment’: International

environmental law's factual, technical and (unmentionable)

normative gaps

Duncan French

|

Louis J. Kotzé

Correspondence

Emails: Dfrench@lincoln.ac.uk;

Louis.Kotze@nwu.ac.za

A key feature of the 2018 United Nations (UN) General Assembly Resolution

‘Towards a Global Pact for the Environment’is the preparation of a technical and

evidence‐based report by the UN Secretary‐General that identifies and assesses pos-

sible gaps in international environmental law (IEL) and environment‐related instru-

ments with a view to strengthening their implementation. The gap report will be

considered by an ad hoc open‐ended working group to discuss options to address

the possible gaps. In this article, we reflect on the likely impact of this initial gap

identification and analysis phase of the intergovernmental process. We are specific-

ally concerned with the notion and the nature of ‘gaps’in the context of the draft

Global Pact, the Resolution and more generally in IEL, and will explore whether the

concept of ‘gaps’has meaningful value and whether such gaps are factual, technical

or normative in nature. While we believe an analysis of the strengths and weak-

nesses of IEL should be welcomed, we are not entirely convinced, however, that a

gap analysis in the form and fashion currently proposed is the most effective or use-

ful way to go about this.

1

|

INTRODUCTION

A key feature of the 2018 United Nations General Assembly (UNGA)

Resolution ‘Towards a Global Pact for the Environment’

1

–the history,

content and purpose of which is described in greater detail here

2

and

elsewhere in this special issue –is the preparation of a ‘technical and

evidence‐based’report by the United Nations (UN) Secretary‐General

‘that identifies and assesses possible gaps in international environmental

law and environment‐related instruments with a view to strengthening

their implementation’.

3

Such a report is to be considered by the ad hoc

open‐ended working group established under the Resolution, to

‘discuss possible options to address possible gaps …and, if deemed

necessary, the scope, parameters and feasibility of an international

instrument’.

4

The gap assessment is a critical first phase in the formal

UN process that may or may not lead to the eventual adoption of ‘an

international instrument’. If adopted, informed as such an adoption

presumably would be by the gap analysis, the ambitions of the Pact's

earliest proponents might very well be fulfilled in due course, namely:

(i) to have a globally binding international environmental law (IEL)

instrument that (ii) entrenches all the major principles of IEL in one

document; whilst also (iii) developing the law progressively to provide

a globally recognized right to live in an ecologically sound environ-

ment, with associated procedural environmental rights.

5

The process of conducting an ex ante gap analysis seems to be

gaining traction in global environmental politics, with the future

----------------------------------------------------------------------------------------------------------------------------------------------------------------------

© 2019 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

1

UNGA ‘Towards a Global Pact for the Environment’UN Doc A/RES/72/277 (10 May

2018).

2

P Thieffrey, ‘The Proposed Global Pact for the Environment and European Law’(2018) 27

European Energy and Environmental Law Review 182; L Kotzé and D French, ‘A Critique of

the Global Pact for the Environment: A Stillborn Initiative or the Foundation for Lex

Anthropocenae?’(2018) 18 International Environmental Agreements: Politics, Law and Eco-

nomics 811.

3

UNGA (n 1) para 1 (emphasis added).

4

ibid para 2.

5

Le Club des Juristes, ‘White Paper: Toward a Global Pact for the Environment’(Le Club

des Juristes 2017).

DOI: 10.1111/reel.12278

RECIEL. 2019;28:25–32. wileyonlinelibrary.com/journal/reel

|

25